PL 70.10 (2) provides:
2. Authorized sentence. When the court has found, pursuant to the provisions of the criminal procedure law, that a person is a persistent felony offender, and when it is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest, the court, in lieu of imposing the sentence of imprisonment authorized by section 70.00, 70.02, 70.04 or 70.06 for the crime of which such person presently stands convicted, may impose the sentence of imprisonment authorized by that section for a class A-I felony. In such event the reasons for the court's opinion shall be set forth in the record.
As I read it, the plain language of this section states that where the defendant before the court would otherwise be sentenced pursuant to Penal Law section 70.02 (a violent felony offender), and the court has determined the defendant is a persistent felony offender, then in lieu of the sentence of imprisonment authorized by 70.02 for the crime of which the defendant stands convicted, the court may impose the sentence of imprisonment authorized by 70.02 for a class A-I felony.
But, there is no sentence of imprisonment authorized by section 70.02 for a class A-I felony.
The plain language of this section states that where the defendant before the court would otherwise be sentenced pursuant to Penal Law section 70.04 (a second violent felony offender), and the court has determined the defendant is a persistent felony offender, then in lieu of the sentence of imprisonment authorized by 70.04 for the crime of which the defendant stands convicted, the court may impose the sentence of imprisonment authorized by 70.04 for a class A-I felony.
But, there is no sentence of imprisonment authorized by section 70.04 for a class A-I felony.
The plain language of this section states that where the defendant before the court would otherwise be sentenced pursuant to Penal Law section 70.06 (a second felony offender), and the court has determined the defendant is a persistent felony offender, then in lieu of the sentence of imprisonment authorized by 70.06 for the crime of which the defendant stands convicted, the court may impose the sentence of imprisonment authorized by 70.06 for a class A-I felony.
But, there is no sentence of imprisonment authorized by section 70.06 for a class A-I felony.
The fact is, sections 70.02, 70.04 and 70.06 provide no sentence at all for a class A-I felony (PL 70.06(1) even specifically excludes A-I felonies from that section's coverage). Only section 70.00 provides a sentence of imprisonment for a class A-I felony (a maximum term of life, and a minimum term of not less than 15 nor more than 25 years). But, according to what I perceive to be the plain language of PL 70.10(2), this alternative sentence is not to be imposed upon a defendant determined to be a persistent felony offender, unless the defendant would otherwise be sentenced under section 70.00 for the crime of which he stands convicted.
Since the other violent and multiple offender sentencing statutes (PL 70.06 and, presumably, PL 70.02, 70.04 and 70.08) are mandatory in nature (see, People v Scarbrough, 66 NY2d 673), the only persistent felony offenders who would otherwise be sentenced under section 70.00 appear to be nonviolent felony offenders with two or more prior felonies committed so long ago that they no longer qualify as predicate convictions for purposes of second felony offender treatment.
This reading of the statute, whatever its logical appeal, yields results so far removed from what has been commonly taken to be its meaning, purpose and intent, as to be almost certainly incorrect. Yet, one must argue that a procedural scheme for sending persons to prison for life should be worded precisely and followed precisely, and it should not have to depend for its validity on a construction that ignores, glosses over, or explains away the meaning derived from its plain terminology and explicit grammatical structure. Perhaps it would have been more correct to state "by those sections", instead of "by that section" or, better, simply to explicity provide in section 70.10 the sentence to be imposed upon a persistent felony offender. In any event, absent any case law authority to the contrary, NYSentencing continues to provide sentences for persistent felony offenders, subject only to this Note.